The Great British Public (and Their Dogs) v Farmers

I am sure that in our Brave New Covid World my dogs are not the only dogs who roll their eyes when I announce it’s time for (yet another) walkies. But where does the huge increase in the use of public rights of way leave our landowners, or more specifically the ‘keepers’ of animals, when the daily walk goes wrong and leads to a claim under the Animals Act 1971?

In basic terms, the Act imposes strict liability upon the keeper of a ‘domesticated’ animal such as a cow, or sheep, which causes severe damage by behaving abnormally, or normally in a particular circumstance, as long as the keeper has knowledge of such behaviour in the species. The first lockdown coincided with the lambing season – wherein sheep are more likely to defend a perceived attack to protect their young – and we are fully in the throes of this year’s lambing season. Aside from the problems faced by farmers whose livestock are attacked by dogs not on leads, it is easy to imagine a huge increase in Animals Act claims where inevitably every man and his dog are out and about exploring the countryside.   

If repeat lockdowns have taught us anything, it’s that there is more to life than working in a city or town office. It seems unlikely that life will ever return to our distant memory of ‘normality’ and it would come as a surprise, at least to me, if people actually wanted it to. If I am right, it follows that for some, they will be working from home more so than ever before, enjoying that daily walk which they might not otherwise have the time to enjoy. We are an island inevitably restricted in size. It follows that livestock farmers’ rights to operate their businesses have a finite amount of grazing space in which to do so. Equally, the public has a finite amount of space to get out in the fresh country air. That leads to a clash. When it does clash, the consequences can be horrific for the injured, or worse, individual – take the example of the deputy head teacher killed in North Yorkshire last September by cows while out walking. The consequences upon the ‘keeper’ are equally as awful, not least the prospect of protracted litigation, a potentially huge hike in business insurance premium, and the knowledge that in the course of operating his or her business, a person has lost his life.

There are things that can be done on both sides. Farmers can attempt to restrict livestock to grazing areas away from public rights of way, and the public can be made more aware of basic precautions such as avoiding walking between cows and their calves. Both perhaps more easily said than done. But even with such measures, is that enough?

For those who practice in this fairly niche area of law, the Animals Act arguments are well trodden.

In Mirvahedy v Henley [2003] 2 AC 491 – the only Animals Act case to reach the House of Lords – the claimant suffered significant personal injuries when the car he was driving was hit by a horse kept by the defendant. That horse, along with two others, had been frightened by something in their field, causing them to panic and bolt out of the field, escaping through wooden and electric fencing and undergrowth, up a track and onto a major road. The subject of the appeal to the House of Lords was section 2(2)(b), with Lord Walker, by a narrow majority, introducing a new two stage test – the risk (of harm) is due to characteristics of the animal which i) are abnormal in its species or ii) are normal in the species but only at particular times or in particular circumstances (and the damage is caused at such a time or in such circumstances.) It was held by the majority that the tendency of a horse to bolt was a characteristic not normally found in animals of the same species, except in the particular circumstances of a horse sufficiently alarmed and panicked – section 2(2)(b) was established.

I do not put it too highly when I say that the judgment put the frighteners on the insurance industry. It is thought that it was directly responsible for a significant increase in premiums. The Country Land and Business Association (CLA) and British Horse Society (BHS) sought to have the Compensation Act 2006 amended so that owners of ‘normal’ animals behaving ‘normally’ are not liable for the injuries those animals cause to people. When they failed they turned their attention on to the Animals Act, and consideration was given to the issue in parliamentary discussion of the Animals Act (Amendment) Bill.

In March 2009, DEFRA produced a document entitled Consultation on changes to the Animals Act 1971 to clarify the application of strict liability to the keepers of animals. It contained modest proposals which would breathe life into section 2(2)(b). So far, no amendments have been adopted, and the provision as interpreted in Mirvahedy continues to cause concern even at the higher levels of the judiciary. In particular, Lewison LJ in Turnbull v Warrener [2012] EWCA Civ 412 expressed concern that “the Animals Act 1971 has caused a major (and unintended) expansion in the potential scope of strict liability“.

What is quite astounding is that Mirvahedy is still the seminal authority on the Animals Act and was determined just shy of 20 years ago. The cases that follow Mirvahedy, with some exceptions, do little to assuage the fears of the rural insurance industry and the rural keepers of livestock.

Perhaps I am biased, but it seems to me that it is time for change, more so now than ever.